Constitutional Future of the Development Facilitation act

Some readers may be aware of the judgement handed down by the Constitutional Court on 18 June 2010 in the application by the City of Johannesburg Metro (CJM) and the eThekwini Metro (Greater Durban) for the confirmation of an order made by the Supreme Court of Appeal, declaring Chapters V and VI of the DFA unconstitutional. The question is now: What is the status of the DFA, particularly in view of many applications currently being in the cooking pot?

For those who have missed the news at the time: the Constitutional Court concurred with CJM and eThekwini that the powers to rezone land and to approve the establishment of townships are components of “municipal planning”, a function assigned to municipalities by section 156(1) of the Constitution. In a unanimous judgment the Court then held that the Constitution envisages a degree of autonomy for the municipal sphere. Herein municipalities can exercise their original constitutional powers, free from undue interference from the other spheres of government. It further held that since the said powers are elements of “municipal planning”, an exclusive municipal function, therefore Chapters V and VI of the DFA were indeed constitutionally invalid. The Court found that the DFA sought to wrongly assign exclusive (or parallel) powers to the provincial sphere of government in the person of the various Development Tribunals.

However the Court also recognised the argument by SAPOA, the planning community and property developers that should the DFA be totally struck off the table, it would create a void in areas where there is no alternative planning tool available. It is mostly in the northern provinces of the old Transvaal, particularly in areas of the former homelands and so-called self governing areas where Ordinance 15 of 1986 never applied, where otherwise no alternative process will exist. Furthermore many rural municipalities simply have no capacity to apply the procedures of the Ordinance and they would in fact welcome the use of the DFA for the development of land. In view of this evidence the Court then suspended the order of invalidity for 24 months, to allow Parliament to rectify the defects in the Act, or to pass new legislation.

The situation at the time was therefore as follows:

1. All DFA applications which were duly submitted by 18 June 2010 would proceed to conclusion by the Tribunals, while approvals under the DFA within CJM and eThekwini must be processed to proclamation;
2. In the areas of jurisdiction of CJM and that of eThekwini the Tribunals are prohibited to accept new applications after 18 June 2010, since these authorities have proved the capability of exercising their constitutional powers.
3. Elsewhere in the country new DFA application may still be submitted to Tribunals and be heard and finalised, until 17 June 2012, on proviso that the Tribunals, in dealing with applications, adhere to municipalities’ local policies and Spatial Development Framework proposals.

Meanwhile the legislature has decided not to amend or rectify the DFA but to replace it completely with the Spatial Planning and Land Use Management Bill (SPLUMB). In May 2011 the SPLUMB was gazetted and an extensive consultation process launched. As with new legislation, a lot of criticism and representation were offered which may result in large scale amendments and even some more consultation

The purpose of SPLUMB is to regulate spatial planning in the Republic and to replace, apart from the DFA, also all earlier legislation such as the provincial ordinances. Each Province is obliged to create own second tier legislation, of which Gauteng has already adopted the Gauteng Development Planning Act. However, the Bill must be passed into law in June 2012 and as this deadline looms, many concerns have been raised within the development community. It is argued that the Constitutional Court Judgment was silent on any transitional arrangements which may have to be put in place should the June 2012 deadline become effective. In the absence of such transitional arrangements (i.e. the authority of the Tribunal and the office of the Registrar and the office of the Designated Officer being substituted by other bodies of similar nature), it may well occur that all the current DFA matters may find themselves in a vacuum for an undetermined period of time.

In certain quarters there is even talk of a new application being brought before the Constitutional Court in an attempt to extend the deadline for another 18 to 24 months. This is due to concerns that the SPLUMB will not be passed into law it time, which will leave many property developers in dire straits. SAPOA on the other hand is confident that the Department of Rural Development and Land Reform has the process well in hand and does not support an approach that favours litigation over engagement and discussion.

I will not try to predict the future, but I can see that many developers and professionals in the built environment will be keeping a keen eye on the situation in the few months to follow.